President Trump signed an executive order (EO) this week that would direct executive agencies to weaken Section 230 of the Communications Decency Act. Section 230 has been a key driver of growth in America’s world-leading digital economy. Any efforts to gut Section 230 would have adverse consequences for not only the thousands of people that work for America’s large and small tech companies but also the hundreds of millions of people who rely on free, innovative platforms like Facebook and Google.
The Washington Post reported that the EO:
“...would prompt federal officials to open a proceeding to reconsider the scope of the law, the people familiar with the document said. A change could mean potentially dramatic free-speech implications and wide-ranging consequences for a broad swath of companies reliant on doing business on the Internet. The order would also seek to channel complaints about political bias to the Federal Trade Commission, which would be encouraged to probe whether tech companies’ content-moderation policies are in keeping with their pledges of neutrality.”
The federal agencies involved would include the Federal Communications Commission (FCC) and Federal Trade Commission (FTC). Under the EO, the Department of Commerce would ask the FCC “to write regulations that could narrow the conditions in which Section 230 applies,” while the FTC would be asked to review “complaints about bias on the platforms, potentially treating certain content moderation moves such as account bannings and takedowns as unfair trade practices.”
It’s worth reviewing why Section 230 is so important to America’s digital economy, especially given some Republican lawmakers, like Sen. Josh Hawley (R-MO) and Sen. Marco Rubio (R-FL), are backing the President’s impending move.
NTU wrote to Sen. Hawley back in July 2019, after Hawley introduced legislation that would condition tech platforms’ liability protections on FTC certifications that the same platforms do not engage in any ‘politically biased’ moderation. We saw this bill as a big-government step towards excessive interference with and regulation of private businesses. We wrote that:
“Section 230 of the Communications Decency Act is crucial for internet services in two ways: 1) it states that the service provider shall not be ‘treated as the publisher or speaker of any information provided by another information content provider,’ and 2) it shields service providers from liability for ‘good faith’ actions that restrict access or availability to content deemed ‘obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.’ Multiple free-market groups and thinkers have rightly credited Section 230 with helping make America the global leader in digital economic growth.”
When the Trump administration previously considered an EO making major changes to Section 230, in August 2019, we shared coalition principles explaining how the language of Section 230 has led to a thriving modern economy providing innovative services to a majority of American consumers:
“Section 230 encourages innovation in Internet services, especially by smaller services and start-ups who most need protection from potentially crushing liability. The law must continue to protect intermediaries not merely from liability, but from having to defend against excessive, often-meritless suits—what one court called ‘death by ten thousand duck-bites.’ Without such protection, compliance, implementation, and litigation costs could strangle smaller companies even before they emerge, while larger, incumbent technology companies would be much better positioned to absorb these costs. Any amendment to Section 230 that is calibrated to what might be possible for the Internet giants will necessarily mis-calibrate the law for smaller services.”
Policymakers considering dramatic, wholesale changes to Section 230 would be wise to consider the following: Can you imagine a world without free email platforms like Gmail? A world without social media platforms that connect tens of millions of people every single day? A world without e-commerce platforms like Amazon, Uber, or Doordash?
The point here is not to laud specific companies or services over others, but to point out that all of these companies - along with the next generation of Googles, Facebooks, and Amazons - can thrive, grow, and innovate because of Section 230. Americans have been well-served by free and relatively unfettered access to these services, and taxpayers are well-served when the government modernizes its workforce and its physical capital to more efficiently and effectively serve the American people. Section 230 is a linchpin to all this innovation, and both the Trump administration and independent agencies like the FCC and FTC should avoid changes to the law.